On 24 April 1973 Thirteen Supreme Court Judges Ruled 7 to 6 That Parliament Can Amend Any Part of India's Constitution Except Its Basic Structure

On 24 April 1973 thirteen judges of the Supreme Court of India, the largest bench the Court had ever assembled, ruled by seven votes to six that Parliament may amend any part of the Constitution but may not destroy its basic structure. The case is Kesavananda Bharati v State of Kerala. It began as a petition by the head of a Kerala monastery about a land law, and every constitutional amendment passed since can be tested against it.

The phrase “basic structure” does not appear in Article 368, the article that lets Parliament amend the Constitution. The judges found the limit in the word “amendment” itself, in the Preamble, and in the design of the document. They did not agree on the reasons, and that disagreement still shapes how the ruling is read.

A monastery, a land law and three amendments

The petitioner was Kesavananda Bharati Sripadagalvaru, head of the Edaneer Mutt in Kasaragod, Kerala (a mutt is a Hindu monastery). He died there on 6 September 2020, according to Bar and Bench. On 21 March 1970 he filed a writ petition directly in the Supreme Court under Article 32, the right to approach the Court to enforce fundamental rights, which Ambedkar described to the Constituent Assembly as the heart of the Constitution. He cited Articles 25, 26, 14, 19(1)(f) and 31 (religion, the management of religious institutions, equality and property) and asked the Court to declare the Kerala Land Reforms Act, 1963, as amended in 1969, void. The Court issued a notice (a rule nisi, an order to show cause) on 25 March 1970.

Behind the Kerala law sat a larger dispute. Fundamental rights are the guarantees in Part III of the Constitution, and Article 13(2) says the state shall not make a law that takes away or abridges them. In Golak Nath (27 February 1967) a bench of eleven judges ruled, by six to five, that Parliament could not use Article 368 to take those rights away. The Court’s own account of the history adds that the earlier cases, Sankari Prasad (1951) and Sajjan Singh (1965), had held the opposite.

Parliament answered with amendments. The Twenty-fourth, which received assent on 5 November 1971, inserted a clause saying Article 13 does not apply to amendments made under Article 368. The Twenty-fifth, dated 20 April 1972, replaced “compensation” with “amount” in the property-acquisition article, barred courts from questioning the adequacy of that amount, and added Article 31C. That article protected laws meant to secure the principles in Article 39(b) and (c), which concern how the community’s material resources are owned and shared and how wealth is concentrated, from challenge under Articles 14, 19 and 31. The Twenty-ninth came into force on 9 June 1972 and placed two Kerala land laws in the Ninth Schedule, a list of laws shielded from fundamental-rights challenge by Article 31B.

The petitioner added all three amendments to his case, and the Court allowed this on 10 August 1972. A commemorative volume published in 2024 by the National Law University and Judicial Academy, Assam, records that the government had also answered the bank nationalisation and privy purse rulings with amendments. The privy purses were the payments promised to former princely rulers, a settlement tied to Sardar Patel’s work with the princely states.

Thirteen judges, eleven opinions

The bench was Chief Justice S. M. Sikri and Justices J. M. Shelat, K. S. Hegde, A. N. Grover, A. N. Ray, P. Jaganmohan Reddy, D. G. Palekar, H. R. Khanna, K. K. Mathew, M. H. Beg, S. N. Dwivedi, A. K. Mukherjea and Y. V. Chandrachud. Justice Beg wrote that a bench of thirteen was larger than any previous bench to hear a case in the Court. Justice Chandrachud wrote that “The largest Bench sat for the longest time.”

Arguments began on 31 October 1972. The hearing is usually put at 68 days and said to have ended on 23 March 1973, a count given by the senior advocate Arvind Datar in The Hindu in 2013 and repeated by LiveLaw. The judges’ own counts differ. Justices Hegde and Mukherjea wrote of “over 65 working days,” Justice Reddy of 66 days, and Justice Beg of arguments lasting almost five months. Nani Palkhivala led for the petitioners, and H. M. Seervai and the Attorney General appear throughout the judgment arguing for the other side. Chandrachud recorded that the bench was shown the amending clauses of the constitutions of 71 countries. Counsel also read out speeches from the Constituent Assembly’s debates, though Chandrachud wrote that such debates are not admissible as aids in construing constitutional provisions.

The bench delivered eleven opinions on 24 April 1973, a day before Chief Justice Sikri retired, according to Fali Nariman’s autobiography as quoted in the NLU volume. Shelat and Grover wrote together, as did Hegde and Mukherjea. The Court’s own page lists the majority as Sikri, Shelat, Grover, Hegde, Mukherjea, Reddy and Khanna, and the dissenters as Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud. The Court’s PDF of the opinions runs to 502 pages.

The bench did not decide the monastery’s land case. Its order sent the cases back to a regular Constitution Bench “for disposal in accordance with law.” What it settled was the question of power, and it settled it as follows. Golak Nath was overruled. The Twenty-fourth Amendment was valid, and so was the Twenty-ninth. The first part of Article 31C stood, and the second part, which said courts could not ask whether a law really served the stated policy, fell.

What the doctrine says

Chief Justice Sikri’s conclusion says the word “amendment” does not let Parliament abrogate or take away fundamental rights or “completely change the fundamental features of the Constitution so as to destroy its identity.” In the same paragraph he wrote, “Within these limits Parliament can amend every article.” He listed the features he regarded as basic: the supremacy of the Constitution, a republican and democratic form of government, the secular character of the Constitution, the separation of powers between legislature, executive and judiciary, and the federal character. He said all of them rest on the dignity and freedom of the individual.

Other judges drew the list differently. Shelat and Grover added the unity and integrity of the nation and the welfare-state mandate of the directive principles, and wrote that the elements “cannot be catalogued but can only be illustrated.” Justice Khanna, whose vote made the majority, rested the limit on the meaning of the word. Amending, he wrote, means changing the existing Constitution, so an amendment cannot replace it with a different one. He gave examples of what Article 368 could not do: turn a democratic government into a dictatorship or hereditary monarchy, abolish the Lok Sabha and the Rajya Sabha, or end the secular character of the state. Article 368, he wrote, cannot be read to embody “the death wish of the Constitution.” He also held that the right to property is not part of the basic structure.

The six dissenters held the other view. Justice Ray concluded that there are no implied or inherent limits on amendment and that the power is “wide and unlimited,” though he also recorded the Attorney General’s and Seervai’s argument that amendment cannot mean wholesale repeal of the Constitution. Justice Palekar likewise found no implied limits and held the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments valid.

The one-page summary and the argument over it

After the eleven opinions were read out, Chief Justice Sikri read a sheet titled “The view by majority in these writ petitions” and passed it along for signatures. The NLU volume reproduces its six propositions. The second says that Article 368 “does not enable Parliament to alter the basic structure or framework of the Constitution,” words taken from Khanna’s conclusion. Nine judges signed. Ray, Mathew, Beg and Dwivedi did not.

The status of that sheet is contested. The NLU volume quotes H. M. Seervai’s view that a summary signed by nine judges has no legal effect and is not law declared under Article 141. Seervai, it adds, later accepted the basic structure limit after the Emergency. Nani Palkhivala wrote that Khanna agreed with none of the other twelve judges and took a position midway between the two camps, which became the law of the land. The same volume’s author argues that six of the seven majority judges reached their limit by different reasoning from Khanna’s, so the sheet does not state a single ratio, the legal principle a ruling rests on. Later benches have nonetheless treated the doctrine as binding.

The first test: 1975 and the review that was dissolved

On 12 June 1975 the Allahabad High Court declared Prime Minister Indira Gandhi’s election void. The Thirty-ninth Amendment then inserted Article 329A, which moved disputes over the election of the Prime Minister and the Speaker out of the courts and into a body Parliament would set up. On 7 November 1975 a five-judge bench decided Indira Nehru Gandhi v Raj Narain and struck down clause (4) of Article 329A. According to the Minerva Mills judgment, Khanna and Mathew held that free and fair elections, part of democracy, belong to the basic structure. Chandrachud listed four features he treated as unamendable: a sovereign democratic republic, equality of status and opportunity, a state with no religion of its own, and government of laws and not of men. Mathew disagreed with him that Article 14 is a basic feature.

The NLU volume notes that the ruling was unanimous and that four of the five judges had dissented in 1973. The Court nonetheless upheld the Prime Minister’s election. Chief Justice Ray had ordered on 20 October 1975 that a bench of thirteen would hear arguments from 10 November on whether the basic structure doctrine restricted Parliament. The NLU volume reports T. R. Andhyarujina’s account that no review application had been filed. Palkhivala argued against a review on 10 and 11 November, and on 12 November Ray dissolved the bench. Justice Khanna wrote in his memoir that the judges agreed with the move.

The second test: Minerva Mills in 1980

The Forty-second Amendment of 1976 was a direct reply. Section 55 added clauses to Article 368 saying no amendment could be questioned in any court on any ground and that Parliament’s power to amend had no limits at all. Section 4 extended Article 31C to laws serving any directive principle. On 9 May 1980 the Court ordered both sections void, and on 31 July 1980 it gave its reasons in Minerva Mills v Union of India. The majority of four, led by Chief Justice Chandrachud, who had dissented in 1973, wrote that “The power to destroy is not a power to amend.” Justice Bhagwati agreed on section 55 but would have upheld section 4.

A related ruling, Waman Rao, drew a line at 24 April 1973. Laws added to the Ninth Schedule before that date kept their protection. Laws added later could be checked against the basic structure. In I. R. Coelho (2007) a bench of nine judges confirmed that later additions are open to review.

The third test: judges choosing judges, 2015

The Ninety-ninth Amendment and the National Judicial Appointments Commission Act, 2014 were passed unanimously, the amendment bill by the Lok Sabha on 13 August 2014 and the commission bill by the Rajya Sabha the next day. They came into force on 13 April 2015 and replaced the collegium, the system in which senior judges recommend judicial appointments, with a six-member commission. It was to include the Chief Justice, two other senior Supreme Court judges, the Union Law Minister and two eminent persons chosen by a committee of the Prime Minister, the Chief Justice and the Leader of the Opposition.

On 16 October 2015 a five-judge bench led by Justice J. S. Khehar struck down the amendment and the Act by four to one, and revived the collegium. The majority held that Article 124A(1)(a) and (b) did not secure judicial primacy in appointments and so damaged judicial independence, which belongs to the basic structure. Khehar wrote that the judiciary’s role in safeguarding citizens’ rights can be ensured only by keeping it “absolutely insulated and independent, from the other organs of governance.”

Justice J. Chelameswar dissented. He held that the amendment did not abrogate the basic structure, that the Law Minister’s presence did not undermine independence, and that the absolute independence of any one of the three branches is inconsistent with democratic values. The NLU volume quotes Justice Kurian Joseph, who joined the majority, as saying later that he regretted the decision because the collegium’s working had disappointed him, while he still believed judicial independence was better protected under it (LiveLaw reported the remarks on 3 June 2023). The bench itself left open measures to improve how the collegium works.

On 24 April 2023, the fiftieth anniversary of the verdict, the Supreme Court launched a web page carrying the opinions of all thirteen judges, the written submissions and the record of proceedings.